Citation Nr: 0731682
Decision Date: 10/05/07 Archive Date: 10/16/07
DOCKET NO. 03-24 380 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Muskogee,
Oklahoma
THE ISSUE
Entitlement to service connection for coronary artery
disease.
REPRESENTATION
Veteran represented by: Doug Merritt, Esq.
WITNESS AT HEARINGS ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
K. Conner, Counsel
INTRODUCTION
The veteran served on active duty from February 1974 to March
1989.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a February 2003 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Muskogee, Oklahoma.
In April 2004, the veteran testified at a hearing before a
Veterans Law Judge sitting at the RO. In September 2004, the
Board remanded the matter for additional evidentiary
development.
In an October 2005 letter, the veteran was advised that he
was entitled to an additional Board hearing as the Veterans
Law Judge who had conducted the April 2004 hearing was no
longer employed by the Board. See 38 U.S.C.A. § 7102 (West
2002); 38 C.F.R. § 20.707 (2005). The veteran responded that
that he wished to attend another Board hearing.
A second Board hearing was held in April 2006 by means of
video conferencing equipment with the veteran and his
attorney at the RO, and the undersigned Veterans Law Judge
sitting in Washington, DC. 38 U.S.C.A. § 7107(c), (e)(2)
(West 2002).
Following the hearing, in August 2006, the Board remanded the
matter to the RO for additional evidentiary development. A
review of the record shows that the RO has complied with all
remand instructions. Stegall v. West, 11 Vet. App. 268
(1998).
FINDING OF FACT
The veteran's current coronary artery disease is related to
his elevated cholesterol in service.
CONCLUSION OF LAW
Coronary artery disease was incurred in active service. 38
U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2007).
REASONS AND BASES FOR FINDING AND CONCLUSION
VA's Duties to Notify and Assist
Upon receipt of a substantially complete application for
benefits, VA must notify the claimant what information or
evidence is needed in order to substantiate the claim, and it
must assist the claimant by making reasonable efforts to get
the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R.
§ 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187
(2002). In this case, in light of the favorable decision
below, it is clear that no further development or
notification action is required. Neither the veteran nor his
attorney has argued otherwise.
Background
The veteran's service medical records show that that in
August 1976, he sought treatment for chest pain, which he
described as a burning feeling in the mediastinum area.
Examination was normal and the impression was heartburn. The
following month, the veteran complained of chest pain in the
mornings for the past month. Examination was again normal.
The diagnosis was chondritis. In August 1981, the veteran
again sought treatment for chest pain. He reported that he
smoked one pack of cigarettes daily. Examination was normal.
The diagnosis was chest congestion and the veteran was
advised to return if his symptoms recurred. The remaining
service medical records, however, are negative for complaints
or findings of chest pain.
The veteran's service medical records also show that blood
pressure readings taken during service were consistently
below 140/90, with rare exceptions. For example, in January
1980, when the veteran sought emergency treatment after he
lacerated his right hand on a wall locker, a blood pressure
reading of 128/100 was noted. In January 1982, when he
sought treatment in the emergency room for a laceration on
his forehead, his blood pressure was 120/94. In November
1988, when the veteran sought emergency treatment for burning
in his eyes, a blood pressure reading of 144/84 was recorded.
When the veteran underwent a periodic physical examination in
June 1987, his heart and vascular system were normal and his
blood pressure was 130/80. Laboratory testing showed that
the veteran's cholesterol was 250 mg/dl and his blood sugar
level was 86 mg/dl.
At his March 1989 military separation medical examination,
the veteran reported a history of high blood pressure, but
denied a history of chest pain or pressure, heart trouble, or
palpitation or pounding heart. The examiner elaborated that
the veteran had reported "HTN - once last week."
Examination, however, showed that the veteran's heart and
vascular system were normal and his blood pressure was
130/82.
In January 2001, the veteran submitted an original
application for VA pension benefits, stating that he was no
longer able to work due to hypertension and heart disease.
In support of the veteran's claim, the RO obtained VA
clinical records, dated from May 2000 to May 2001. In
pertinent part, these records show that the veteran was
diagnosed as having coronary artery disease in November 2000.
Subsequent clinical records show continued treatment for
coronary artery disease.
The veteran underwent VA medical examination in March 2001,
at which he reported that he had been good health until
August 2000, when he was discovered to have hypertension and
was prescribed medication. In November 2000, he began to
have chest pain and was diagnosed as having coronary artery
disease. He underwent an angioplasty with stent placement in
January 2001. The diagnosis was heart disease status post
angioplasty with a left main branch stent.
In a June 2001 rating decision, the RO awarded the veteran
nonservice-connected pension benefits.
In October 2002, the veteran submitted a claim of service
connection for cardiovascular disease, claiming that he had
been treated for elevated blood pressure and chest pains many
times during service.
In support of his claim, the RO obtained VA clinical records,
dated from May 2001 to October 2004, showing continued
treatment for coronary artery disease. Also obtained were
records from the Social Security Administration showing that
the veteran had been awarded disability benefits effective in
January 2001 for coronary artery disease.
In a March 2004 letter, a private cardiologist noted that the
veteran had asked him whether the elevated cholesterol
reading in 1987 was evidence of coronary artery disease in
service. The cardiologist indicated that he would not be
surprised if the veteran had had the beginnings of coronary
artery disease even at that early stage, although he was
unable to say conclusively one way or another. He explained
that coronary artery disease is well known to be an insidious
disease that takes many years to develop. The cardiologist
indicated that since the veteran had been discovered to have
high grade stenosis in 2001, it was possible that he had had
some disease present 10 to 15 years prior to that, although
he could not be sure.
In May 2005, the veteran was afforded a VA medical
examination. After examining the veteran and reviewing his
service medical records, the VA physician indicated that she
could not, without resorting to speculation, say that the
veteran's coronary artery disease started in service. In
reviewing the veteran's medical history, she noted the
veteran's history of a single episode of high cholesterol of
250 while in service, but indicated that she could find no
episodes of elevated blood pressure readings in service.
The veteran underwent VA medical examination in April 2007.
After examining the veteran and reviewing his claims folder,
the examiner concluded that the veteran's symptoms of chest
pain in service were not consistent with typical cardiac
symptoms. She further noted that it was significant that the
record on appeal was silent for any type of symptoms between
1981 and 2000. With respect to the veteran's hypertension,
she noted that the veteran's service medical records showed
that his blood pressure was consistently normal, with the
exception of a few instances when he was seen for urgent
care, which could cause a transient increase in blood
pressure. She noted that a diagnosis of hypertension
requires consistent blood pressure readings greater than
140/90. Therefore, taking into consideration all of the
evidence, she concluded that the veteran did not have
hypertension in service. With respect to his cholesterol,
the examiner noted that the veteran did have an elevated
cholesterol level during service, which was most likely
reflective of ongoing hyperlipidemia. She indicated that
hypercholesterolemia has been associated with an increased
risk of development of coronary artery disease. Therefore,
it was her opinion that it was at least as likely as not that
the veteran's current coronary artery disease is related to
his elevated cholesterol during service. She indicated that
it was not related to the in-service episodes of chest pain
or the episodes of elevated blood pressure readings.
In a May 2007 letter, a VA cardiologist indicated that after
examining the veteran and reviewing the claims folder, he had
concluded that the veteran had had dyslipidemia during
service and that military physicians had missed the
opportunity to correct this condition with appropriate
therapy to reduce his cholesterol. The VA cardiologist noted
that dyslipidemia was one of the major contributors to
developing coronary artery disease. In the veteran's case,
adequate therapy and intervention most likely would have
delayed or reduced the impact of the veteran's current
coronary artery disease. The VA cardiologist indicated that
after interviewing the veteran, it was clear to him that the
veteran had a strong family history of coronary artery
disease at an early age; thus, he would have been more
aggressive in primary prevention for atherosclerosis.
Applicable Law
Service connection may be established for disability
resulting from personal injury suffered or disease contracted
in line of duty in the active military, naval, or air
service. 38 U.S.C.A. §§ 1110, 1131. That an injury or
disease occurred in service is not enough; there must be
chronic disability resulting from that injury or disease. If
there is no showing of a resulting chronic condition during
service, then a showing of continuity of symptomatology after
service is required to support a finding of chronicity. 38
C.F.R. § 3.303(b). Service connection may also be granted
for any injury or disease diagnosed after discharge, when all
the evidence, including that pertinent to service,
establishes that the disease or injury was incurred in
service. 38 C.F.R. § 3.303(d).
Service connection for certain diseases, such as
cardiovascular-renal disease, may be also be established on a
presumptive basis by showing that such a disease manifested
itself to a degree of 10 percent or more within one year from
the date of separation from service. 38 U.S.C.A. § 1112;
38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the
disease is presumed under the law to have had its onset in
service even though there is no evidence of such disease
during the period of service. 38 C.F.R. § 3.307(a).
When there is an approximate balance of positive and negative
evidence regarding any issue material to the determination of
a matter, the benefit of the doubt shall be given to the
claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt
arises regarding service origin, such doubt will be resolved
in the favor of the claimant. Reasonable doubt is doubt
which exists because of an approximate balance of positive
and negative evidence which does not satisfactorily prove or
disprove the claim. 38 C.F.R. § 3.102. The question is
whether the evidence supports the claim or is in relative
equipoise, with the claimant prevailing in either event, or
whether a fair preponderance of the evidence is against the
claim, in which event the claim must be denied. See Gilbert
v. Derwinski, 1 Vet. App. 49, 53-54 (1990).
Analysis
The veteran's seeks service connection for coronary artery
disease. As set forth above, the medical evidence of record
shows that he was not diagnosed as having coronary artery
disease until November 2000, more than eleven years after his
separation from active service. He does not contend
otherwise. Rather, the veteran contends that his coronary
artery disease nonetheless had its inception during service,
as evidenced by service medical records showing an episode of
elevated cholesterol in 1987.
In that regard, the Board observes that while coronary artery
disease was not diagnosed during service or within the first
post-service year, service connection may be nonetheless be
granted for a disease diagnosed after service discharge, when
all the evidence, including that pertinent to service,
establishes that the disease was incurred in service. 38
C.F.R. § 3.303(d).
Thus, the Board has carefully reviewed the record, with
particular attention to medical evidence discussing the
etiology and date of onset of the veteran's coronary artery
disease. As discussed above, in a March 2004 letter, a
private cardiologist indicated that he would not be surprised
if the veteran had had the beginnings of coronary artery
disease in service in light of the elevated cholesterol
reading in 1987, although he was unable to say conclusively
one way or another.
This medical opinion is unfortunately speculative; therefore,
in and of itself, it does not provide the degree of certainty
required for medical nexus evidence for the purposes of
service connection. See Stegman v. Derwinski, 3 Vet. App.
228, 230 (1992). However, VA has subsequently obtained two
additional medical opinions further indicating that it is at
least as likely as not that the veteran's current coronary
artery disease is related to his in-service elevated
cholesterol.
Specifically, in an April 2007 medical opinion, a VA examiner
concluded that it was at least as likely as not that the
veteran's current coronary artery disease is related to his
elevated cholesterol during service. Similarly, in a May
2007 medical opinion, a VA cardiologist indicated that after
examining the veteran and reviewing the claims folder, that
he had concluded that the veteran had had dyslipidemia during
service which was one of the major contributors to developing
coronary artery disease. In the veteran's case, he indicated
that such condition went untreated and that adequate therapy
and intervention most likely would have delayed or reduced
the impact of the veteran's current coronary artery disease.
The Board has reviewed the remaining evidence of record and
notes that it contains no medical opinion contradicting the
medical opinions discussed above, all of which tend to
indicate that the elevated cholesterol reading in service may
have represented the onset of coronary artery disease.
In claims for VA benefits, when there is an approximate
balance of positive and negative evidence regarding any issue
material to the determination of a matter, the Secretary
shall give the benefit of the doubt to the claimant. 38
U.S.C.A. § 5107(b) (West 2002); see also Gilbert v.
Derwinski, 1 Vet. App. 49, 53 (1990). In other words, the
preponderance of the evidence must be against the claim for
the benefit to be denied. Gilbert, 1 Vet. App. at 54. Given
the evidence set forth above, such a conclusion cannot be
made in this case.
After considering these medical opinions, therefore, and
reviewing the evidence in its entirety, it appears that that
there is at least an approximate balance of positive and
negative evidence regarding the merits of this issue. Thus,
with reasonable doubt resolved in favor of the veteran,
service connection is warranted for coronary artery disease.
38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-
56 (1990).
ORDER
Entitlement to service connection for coronary artery disease
is granted.
____________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs